The Competition Tribunal partially accepted a lawsuit by the National Economic Prosecutor’s Office against SMU S.A. (“SMU”), for not complying with the First and Third conditions of Resolution # 43/2012 (“the Resolution”).
The National Economic Prosecutor’s Office accused SMU of not complying with the First, Second N° 1 and Third conditions of the Resolution that approved –with conditions– the already materialized merger of SMU and Supermercados del Sur (“SdS”). In general terms, the National Economic Prosecutor’s Office stated: (i) that the divestiture of certain stores, three distribution centers operated by SdS, and one of the commercial brands acquired by SMU had not taken place (noncompliance with the First Condition); that SMU had not equalized prices in the stores that were to be sold –according to the First Condition– to prices in the nearest location where sufficient competitive conditions existed (noncompliance with the Second Condition); and, (iii) that SMU had not divested its participation in Supermercados Montserrat (noncompliance with the Third Condition).
The Tribunal stated that SMU knowingly did not comply with the First Condition, by not selling the assets ordered in the Condition in a timely manner. Therefore, SMU was fined for this noncompliance with 5% of the relevant sales, which amounts to 508 Annual Tributary Units.
Regarding the Third Condition, the Tribunal stated that SMU knowingly did not comply with it, by not selling its participation in Supermercados Montserrat in a timely manner. Therefore, SMU was fined with 4% of the relevant sales, which amounts to 1,826 Annual Tributary Units.
Regarding the Second Condition N° 1, the Tribunal acquitted SMU, since the methodology that the defendant applied to equalize prices was considered appropriate, given the characteristics and the generality of the condition.
Judges Tapia y Arancibia held a minority ruling, stating that they would have declared that SMU had not complied with the Second Condition N° 1 of the Resolution. Also, Judge Tapia stated that the fines applied to SMU did not have enough of a deterrent effect, considering that they should have been set to 15% of the relevant sales in each case.